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Keep your Finger on the Pulse: A New Court Ruling Regarding Fingerprints and Biometric Attendance Clocks

Dear Clients and Friends, We wish to update you of the National Labour Court's decision dated March 15, 2017, which discussed the legitimacy of requiring employees to report their attendance at the workplace using their fingerprint and a biometric attendance clock1.

The National Labour Court's decision was made within an appeal that was submitted against a decision made by the Regional Labour Court in Tel Aviv. The Regional Labour Court ruled that the requirement by the municipality of Qalansawe, that its employees stamp their attendance using their fingerprint, is legitimate.

The National Labour Court accepted the appeal submitted by the General Histadrut, and cancelled the Regional Labour Court's decision.

Within its ruling, the National Labour Court discussed, in detail, the definition and scope of the right to privacy in general, and specifically the right to privacy in the workplace. In this context, the National Labour Court repeated the standards relating to an employee's right to privacy in the workplace, as set out in the Issakov case2, while implementing and adapting the rulings which have dealt with the use of computers in the workplace, also regarding an employer's entitlement to track its employees' working hours.

The National Labour Court reiterated the rules whereby a balance must be achieved, between the right to privacy in the workplace, and the employer's managerial privilege in the workplace, which includes the right to set clear policies; the principle of transparency; the involvement of the employees in the setting of policies and the anchoring of such in employment agreements; and, maintaining the principle of proportionality and the principle of legitimacy.

With respect to the biometric attendance clock, the ruling states that a person's fingerprint constitutes "private information" and that the use of a biometric attendance system, harms the employees' right to privacy, and their right to autonomy. In light of the above, an employer's right will only triumph above its employees' right to privacy in the following two cases:

By law (which law must meet the requirements of the restrictive provision in the Basic Law: Human Dignity and Liberty) – There is currently no such law entitling an employer to obtain its employees' fingerprint;

By consent – in this matter too, the National Labour Court reiterated the standards that were determined in the Issakov case, regarding the need to obtain the employees' informed and free-willed consent, such that it will not negate "public policy" (the fundamental values underlying Israeli society and the Israeli judicial system). Any direct or indirect coercion on the employees, to agree to the use of their fingerprint, including by way of imposing sanctions due to their refusal, will taint the free-will required in this respect.

Specifically with respect to biometric attendance clocks, the National Labour Court pointed at a number of relevant considerations –

The purpose of operating the method – In this context there is significance, among other things, to the type of workplace and the identity of the employees who are required to provide their fingerprint.

The nature, validity and credibility of the biometric system – In this context, the employer must prove the said elements, by providing an independent expert opinion (as opposed to an expert opinion provided by the company that manufactures the biometric system).

Proportionality – as a rule, the use of fingerprints in order to insist on trustworthy attendance records is not proportional. Employers must examine the use of other methods in this context, which are less harmful to their employees' privacy, including positioning a camera directed at the attendance clock, or using a card based biometric system.

As to the requirement to obtain free-willed consent, the ruling states that the free-willed nature of the consent is examined separately, with respect to each individual employee. In light of the above, the ruling questioned, among other things, the ability of an employee organization to provide a collective consent to the installation of a biometric attendance clock. As to the requirement for an informed consent, the ruling states that employers that would like to obtain their employees' consent for the use of their fingerprint, must present the employees with comprehensive information on the matter, including a detailed explanation of what exactly will be "taken" from them; who will take the fingerprint, and what is their training; will the fingerprint be kept in a database; who is in charge of the database and who has access thereto; is the information held in the database in proximity to other identification details; do external factors have access to the database; can the fingerprint be copied; how does the employer ensure that the information in the database is properly safeguarded; how and when is the data deleted from the database; etc.

The National Labour Court did not rule on the question of whether a biometric system, being used by an employer for its employees' attendance, constitutes a "database" according to the Protection of Privacy Law, which requires registration and a license. The Labour Court ruled that even in cases in which an employer will be permitted to take its employees' fingerprint, the reasonableness and proportion of the sanctions which may be imposed on employees who refuse to provide such biometric information should be examined.

The ruling constitutes another chapter in relation to the balance between employees' right to privacy and employers' managerial prerogative and right to property. The ruling is intended to provide additional tools for reaching a balance between safeguarding employee rights, and the desire and need to implement new technologies, that are an inseparable part of today's world, and which address the day-to-day managerial needs in the workplace.

As to the matter of biometric clocks, the ruling concludes with the National Labour court emphasizing that an employer's request to use a biometric attendance clock will not automatically be refused in every case; rather, an employer asking to do so will be required to meet the strictest of terms. In light of the above, we recommend that employers who have a biometric attendance clock installed at their premises, and would like to make use of it, or employers who are considering installing such a system, should hold a discussion on the matter, and obtain specific legal advice regarding the implementation of the parameters determined by the National Labour Court's ruling, in their respect.

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